In the Matter of the

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-201-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 19, 2012 --

Before Judges Parrillo and Alvarez.

V.A.M. appeals from an October 6, 2011 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA,) N.J.S.A. 30: 4-27.24 to -27.38. We affirm.

The predicate offense for which forty-six year old V.A.M. is currently committed occurred on April 9, 1992, when V.A.M. sexually assaulted D.G., a twelve year old girl, by anally penetrating her. As a result, V.A.M. pled guilty to one count of aggravated sexual assault and was sentenced to a fifteen-year term, with a five-year mandatory minimum. Although he had been found to be a repetitive and compulsive sex offender and eligible for sentencing to the Adult Diagnostic and Treatment Center (ADTC), he was sentenced to State prison in accordance with the terms of the plea agreement.

V.A.M. committed the predicate offense while attending outpatient sex offender counseling in accordance with the conditions of his parole for a prior sexually violent crime, that occurred on July 20, 1988, when V.A.M. sexually assaulted Z.C., a six-year old girl, whom he was baby-sitting, by ordering her to pull down her pants and panties and ejaculating between her legs. On November 29, 1988, V.A.M. pled guilty to one count of second-degree sexual assault and on February 16, 1989, was sentenced to a ten-year term of incarceration. He was released on parole on February 14, 1991.

Following completion of his sentence on the April 9, 1992 crime, the State moved for V.A.M.'s commitment under the SVPA. A temporary order of commitment was entered on September 25, 2001, followed by an order of commitment on January 14, 2002. Further review hearings were conducted on September 30, 2003; May 12, 2005; December 1, 2005; June 19, 2006; and October 24, 2008, at which times V.A.M.'s commitment was continued. V.A.M. appealed from the September 30, 2003, June 19, 2006 and October 24, 2008 orders, and we affirmed. In re Civil Commitment of V.A.M., No. A-1650-03 (App. Div. Oct. 13, 2004); In re Civil Commitment of V.A.M., No. A-5766-05 (App. Div. Feb. 15, 2007; In re Civil Commitment of V.A.M., No. A-1711-08 (App. Div. April 24, 2009).

The present appeal arises out of V.A.M.'s most recent review hearing on October 6, 2011. The State presented an expert, Dr. John Zincone, a psychiatrist. Though V.A.M. initially refused to be interviewed for his upcoming review hearing, as he had refused to be interviewed by Dr. Pogos Voskanian for his last review hearing on October 24, 2008, Zincone did have an opportunity to interview V.A.M. on October 13, 2010 and was able to perform an evaluation based on that interview and a review of V.A.M.'s records. During the evaluation, V.A.M. admitted the details of his sexual offenses, but lacked victim empathy and did not take full responsibility for the crimes, according to Zincone.

V.A.M. has a history of depression and there have been indications of suicide attempts in the past. He experiences a "chronic hopelessness" due to the belief he will never be released from STU. These feelings led to some treatment decline and staff members recommended a psychiatric interview and medication and/or participation in a mental health wellness group, which never occurred.

V.A.M. has also suffered from significant alcohol abuse since the age of eighteen and, in fact, he had been drinking prior to both of his sexual assaults. While he is in a substance abuse process group, he has not joined a self-help or 12-step group which, according to Zincone, are critical aids to prevent relapse.

V.A.M. is currently in Phase 2 of treatment, having been demoted from Phase 3 over a year ago. He was recently moved to the south unit at STU, which houses problematic residents.*fn1

According to Zincone, V.A.M. "doesn't see the point in treatment itself, he does the minimum, he doesn't get into his . . . sex offense cycle, his dynamics, he's very difficult to talk [to] about crimes and details. So he's not had a good treatment effect thus far." Zincone further noted that in order to mitigate his risk of re-offending, V.A.M. has to "be engaged, participate, take floors and learn treatment concepts . . . ."

Zincone diagnosed V.A.M. with pedophilia, depressive disorder NOS, alcohol abuse, and personality disorder NOS with antisocial and narcissistic features. The expert explained the effect of having both this personality disorder and pedophilia: "It increases the risk [of re-offending]. . . . [T]he antisocial piece, especially, because it provides for lack of impulse control, a lack of empathy on . . . the resident's part, which causes them to possibly act on that deviant arousal that they have already." And, although V.A.M. scored a three on the Static-99, which corresponds to a low-moderate risk of re-offending, Zincone opined that V.A.M. has not had sufficient treatment to learn how to control the impulses of his disorders, and that, to a reasonable degree of psychiatric certainty, V.A.M. was at a high risk to re-offend.

At the close of evidence, Judge Pursel concluded that V.A.M.'s commitment should continue, and set the next review hearing for September 12, 2012. The judge reasoned:

Both Dr. Zincone and the STU arrived at similar diagnoses for [V.A.M.]. On Axis 1 pedophilia, usually attracted to females, nonexclusive; personality disorder NOS with antisocial features. This has been a consistent diagnosis during [V.A.M.]'s residence here at the STU.

The Court is always in some way partial to the STU notes because they are the people who deal with [V.A.M.] on a daily basis

[H]e was found eligible for treatment at the Adult Diagnostic & Treatment Center when he was sentenced and was recommended for treatment here which he turned down. The reason for his turning it down was it would be too far from his significant other.

Since his arrival here, he has participated in process groups, at least eight of them; has Relapse Prevention, which he completed in April of 2011.

The Treatment team also administered the Static-99R, in fact three -- they were noted in Factor 3 and the non-remission of the diagnosis of pedophilia, the risk somewhat elevated for [V.A.M.].

It's also noted that . . . he committed the index offense while he was on parole for a previous sex offense in attending out patient sex offender treatment, which . . . speaks to the strength of his testimony here.

The treatment team . . . sense[s] that there is a present disorder underlying the axis in this case and that [V.A.M.] is encouraged to continue taking floors to explore his feelings of helplessness and belief that he will die at STU[;] . . . to explore his resistance in participating in treatment as a lack of desire to be in treatment without commitment to the general principles to the STU or the treatment regime[;] . . . and to reconsider his decision to remain in the south unit [because] . . . it limits the groups available for him to attend.

[I]t is clear to this Court that [V.A.M.] suffers from a mental abnormality or personality disorder that makes a person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.

This appeal follows.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26(b).

[T]he State must prove [a] threat [to the health and safety of others because of the offender's likelihood of engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.

The court must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the state must establish "that it is highly likely that" the committee will reoffend "by clear and convincing evidence." Id. at 132-33; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow[,]" and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Pursel in his oral opinion of October 6, 2011.

Affirmed.

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